Twenty-fifth Amendment to the United States Constitution
The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President as well as responding to Presidential disabilities. It supersedes the ambiguous wording of Article II, Section 1, Clause 6 of the Constitution, which does not expressly state whether the Vice President becomes the President or Acting President if the President dies, resigns, is removed from office, or is otherwise unable to discharge the powers of the presidency. The Twenty-fifth Amendment was adopted on February 10, 1967.
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
That clause was unclear regarding Presidential succession and inability; it did not state who had the power to declare a President incapacitated. Also, it did not provide a mechanism for filling a Vice Presidential vacancy before the next Presidential election.
The prospect of presidential disability was not given much attention by the Framers in part because it was thought that the President's responsibilities would be very limited most of the time. Furthermore, in an era of eighteenth century communications technology and diplomacy, it was expected that important decisions could be made on timescales measured in weeks if not months. Moreover, throughout history up to when Constitution was drafted in the late eighteenth century, people who suffered medical trauma or distress serious enough to render them incapacitated usually either died or recovered relatively quickly. It therefore seemed reasonable to assume that short-term medical issues would not likely cause a seriously impediment to a President's ability to carry out his office's expected duties.
Despite these considerations, the vagueness of the original clause caused difficulties many times before the Twenty-fifth Amendment's adoption:
- In 1841, President William Henry Harrison became the first U.S. President to die in office. Representative John Williams had previously suggested that the Vice President should become Acting President upon the death of the President. John Tyler asserted that he had succeeded to the presidency, as opposed to only obtaining its powers and duties. He also declined to acknowledge documents referring to him as "Acting President". Although he felt his vice presidential oath negated the need for the presidential oath, Tyler was persuaded that being formally sworn-in would clear up any doubts about his right to the office. Having done so, he then moved into the White House and assumed full presidential powers. While he was often derided by opponents as "His Accidency", Tyler's claim was not formally challenged, and both houses of Congress adopted a resolution confirming that Tyler was the tenth President of the United States, without any qualifiers. The precedent of full succession was thus established. This became known as the "Tyler Precedent".
- There had been occasions when a President was incapacitated. For example, following Woodrow Wilson's stroke no one officially assumed the Presidential powers and duties, in part because the First Lady, Edith Wilson, together with the White House Physician, Cary T. Grayson, covered up President Wilson's condition for a length of time that would likely be impossible under modern media scrutiny. Although Wilson's true condition eventually became public knowledge, by then only a few months remained in his term and Congressional leaders were thus not sufficiently inclined to press the issue.
- The office of Vice President had been vacant sixteen times due to the death or resignation of the Vice President or his succession to the presidency. For example, there was no Vice President for nearly four years after the assassination of Abraham Lincoln. During the impeachment of Andrew Johnson there was no Vice President to succeed him. At that time, the Presidential Succession Act of 1792 provided that the President pro tempore of the Senate would succeed Johnson if he was removed from office. Had the impeachment trial of Andrew Johnson resulted in Johnson being removed from office, Senator Benjamin Wade, then the President pro tempore of the Senate, would have become acting president pending a special presidential election.
- After having been temporarily incapacitated by several severe health problems, President Dwight D. Eisenhower attempted to clarify procedures through a signed agreement with Vice President Richard Nixon, drafted by Attorney General Herbert Brownell Jr. However, this agreement did not have legal authority. Eisenhower suffered a heart attack in September 1955 and intestinal problems requiring emergency surgery in July 1956. Each time until Eisenhower was able to resume his duties, Nixon presided over Cabinet meetings and, along with Eisenhower aides, kept the executive branch functioning and assured the public that the situation was under control. However, Nixon never made any effort to formally assume the status of Acting President or President.
All of these incidents made it evident that clearer guidelines were needed. There were two proposals for providing those guidelines.
In 1963, Senator Kenneth Keating of New York proposed a Constitutional amendment which would have enabled Congress to enact legislation providing for how to determine when a President is unable to discharge the powers and duties of the presidency, rather than, as the Twenty-fifth Amendment does, having the Constitution so provide. This proposal was based upon a recommendation of the American Bar Association in 1960.
The text of the proposal read:
In case of the removal of the President from office or of his death or resignation, the said office shall devolve on the Vice President. In case of the inability of the President to discharge the powers and duties of the said office, the said powers and duties shall devolve on the Vice President, until the inability be removed. The Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then be President, or, in case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.
Senators raised concerns that the Congress could either abuse such authority or neglect to enact any such legislation after the adoption of this proposal. Tennessee Senator Estes Kefauver, the Chairman of the Senate Judiciary Committee's Subcommittee on Constitutional Amendments, a long-time advocate for addressing the disability question, spearheaded the effort until he died of a heart attack on August 10, 1963. Senator Keating was defeated in the 1964 election, but Senator Roman Hruska of Nebraska took up Keating's cause as a new member of the Subcommittee on Constitutional Amendments.
By the 1960's, medical science had advanced to the point that unlike in the eighteenth century it was increasingly frequent for people (especially those with access to the best medical care) to suffer long-term disability or incapacitaty after medical trauma or distress. Of course this did not happen after John F. Kennedy was fatally shot, but that episode clearly demonstrated the need for a clear way for determining presidential disability in the context of the Cold War. The new President, Lyndon B. Johnson, had once suffered a heart attack and – with the office of Vice President to remain vacant until the next term began on January 20, 1965 – the next two people in the line of succession were the 71-year-old Speaker of the House John McCormack and the 86-year-old Senate President pro tempore Carl Hayden. Senator Birch Bayh succeeded Kefauver as Chairman of the Subcommittee on Constitutional Amendments and set about advocating for a detailed amendment dealing with presidential disability.
On January 6, 1965, Senator Birch Bayh proposed S. J. Res. 1 in the Senate and Representative Emanuel Celler (Chairman of the House Judiciary Committee) proposed H. J. Res. 1 in the House of Representatives. Their proposal specified the process by which a President could be declared "unable to discharge the powers and duties of his office", thereby making the Vice President an Acting President, and how the President could regain the powers of his office. Also, their proposal provided a way to fill a vacancy in the office of Vice President before the next presidential election. This was as opposed to the Keating–Kefauver proposal, which neither provided for filling a vacancy in the office of Vice President prior to the next presidential election nor provided a process for determining presidential disability. In 1964, the American Bar Association endorsed the type of proposal which Bayh and Celler advocated. On January 28, 1965, President Johnson endorsed S. J. Res. 1 in a statement to Congress. Their proposal received bipartisan support.
On February 19, the Senate passed the amendment, but the House passed a different version of the amendment on April 13. On April 22, it was returned to the Senate with revisions. There were four areas of disagreement between the House and Senate versions:
- the Senate official who was to receive any written declaration under the amendment
- the period of time during which the Vice President and Cabinet must decide whether they disagree with the President's declaration that he is fit to resume his duties
- the time before Congress meets to resolve the issue between the President, Vice President, and the Cabinet
- the time limit for Congress to reach a decision
On July 6, after a conference committee ironed out differences between the versions, the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.
Proposal and ratificationEdit
- Nebraska (July 12, 1965)
- Wisconsin (July 13, 1965)
- Oklahoma (July 16, 1965)
- Massachusetts (August 9, 1965)
- Pennsylvania (August 18, 1965)
- Kentucky (September 15, 1965)
- Arizona (September 22, 1965)
- Michigan (October 5, 1965)
- Indiana (October 20, 1965)
- California (October 21, 1965)
- Arkansas (November 4, 1965)
- New Jersey (November 29, 1965)
- Delaware (December 7, 1965)
- Utah (January 17, 1966)
- West Virginia (January 20, 1966)
- Maine (January 24, 1966)
- Rhode Island (January 28, 1966)
- Colorado (February 3, 1966)
- New Mexico (February 3, 1966)
- Kansas (February 8, 1966)
- Vermont (February 10, 1966)
- Alaska (February 18, 1966)
- Idaho (March 2, 1966)
- Hawaii (March 3, 1966)
- Virginia (March 8, 1966)
- Mississippi (March 10, 1966)
- New York (March 14, 1966)
- Maryland (March 23, 1966)
- Missouri (March 30, 1966)
- New Hampshire (June 13, 1966)
- Louisiana (July 5, 1966)
- Tennessee (January 12, 1967)
- Wyoming (January 25, 1967)
- Washington (January 26, 1967)
- Iowa (January 26, 1967)
- Oregon (February 2, 1967)
- Minnesota (February 10, 1967)
- Nevada (February 10, 1967)
Ratification was completed on February 10, 1967. The following states subsequently ratified the amendment:
- Connecticut (February 14, 1967)
- Montana (February 15, 1967)
- South Dakota (March 6, 1967)
- Ohio (March 7, 1967)
- Alabama (March 14, 1967)
- North Carolina (March 22, 1967)
- Illinois (March 22, 1967)
- Texas (April 25, 1967)
- Florida (May 25, 1967)
The following states have not ratified the amendment:
- North Dakota
- South Carolina
Six days after its submission, Nebraska and Wisconsin were the first states to ratify the amendment. On February 10, 1967, Minnesota and Nevada were the 37th and 38th states to ratify, respectively. On February 23, 1967, in a ceremony in the East Room of the White House, General Services Administrator Lawson Knott certified the amendment's adoption.
Section 1: Presidential successionEdit
Section 2: Vice Presidential vacancyEdit
Prior to the Twenty-fifth Amendment's adoption, a Vice Presidential vacancy remained until the next vice-presidential term began. The Vice Presidency has been vacant several times due to death, resignation, or succession to the Presidency. Often these vacancies lasted for several years.
Under Section 2, whenever there is a vacancy in the office of Vice President, the President nominates a successor who becomes Vice President if confirmed by a majority vote of both Houses of the Congress.
Section 3: Presidential declarationEdit
Section 3 provides that when the President transmits a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives, stating that he is unable to discharge the powers and duties of the Presidency, and until the President sends another written declaration to the aforementioned officers declaring himself able to resume discharging those powers and duties, the Vice President discharges those powers and duties as Acting President. The Vice President does not become President and the sitting President is not removed from office.
Section 4: Vice Presidential–Cabinet declarationEdit
Section 4 addresses the situation where an incapacitated President is unable or unwilling to provide the written declaration called for by Section 3. It allows the Vice President, together with a "majority of either the principal officers of the executive departments or of such other body as Congress may by law provide", to declare the President "unable to discharge the powers and duties of his office" by submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. As with Section 3, the Vice President would become Acting President, not President, and the sitting President would not be removed from office. Unlike Section 3, Section 4 says that when invoked the Vice President "immediately" becomes Acting President. Section 4 is the only part of the amendment that has never been invoked.
A President who is declared unable to serve under Section 4 may thereafter send a written declaration of ability to serve to the President pro tempore and the Speaker of the House. If the Acting President and a majority of the Cabinet still believe the President is incapacitated, they have four days to send a second declaration to that effect to the President pro tempore of the Senate and the Speaker of the House of Representatives. If not already in session, the Congress must then assemble within 48 hours to decide the issue. If within 21 days two-thirds of each house of Congress vote that the President is incapacitated, the Vice President would "continue" to be Acting President. Should the Congress resolve the issue in favor of the President, or make no decision within the 21 days allotted, then the President would "resume" office. The use of the words "continue" and "resume" imply that the Vice President remains Acting President pending action by the Cabinet and Congress, and the legislative history of Section 4 makes it clear that its drafters meant for the Vice President to do so. Otherwise, the President could simply retake power and immediately fire Cabinet members who voted to declare the President unfit, preventing the dispute from ever reaching Congress as the drafters intended.
Nothing in Section 4 limits the number of times a President may initiate the process to resume office by sending a written declaration to Congress.
Proposed replacing of Cabinet as entity invoking Section 4Edit
On April 14, 2017, Representatives Jamie Raskin and Earl Blumenauer introduced the Oversight Commission on Presidential Capacity Act. The bill would replace the Cabinet as the body that, together with the Vice President, determines whether Section 4 should be invoked. Under the bill, an eleven-member commission would conduct an examination of the President when directed to do so by a concurrent resolution of the Congress.
According to Blumenauer:
It is hard to imagine a better group to work with the vice president to examine whether the president is able to discharge the duties of the office. When there are questions about the president’s ability to fulfill his or her constitutional responsibilities, it is in the country’s best interest to have a mechanism in place that works effectively.
The Twenty-fifth Amendment has been invoked six times since its ratification. The first three times were applications of Sections 1 and 2 in the context of scandals surrounding the Nixon Administration. The latter three were applications of Section 3 regarding Presidents undergoing a medical procedure requiring general anesthesia.
Succession to presidencyEdit
President Richard Nixon resigned on August 9, 1974, resulting in Vice President Gerald Ford succeeding to the office of President. Gerald Ford is the only person ever to be Vice President, and later President, without being elected to either office.
Filling vice presidential vacanciesEdit
1973: Appointment of Gerald Ford as Vice PresidentEdit
The United States Senate voted 92–3 to confirm Ford on November 27 and, on December 6, the House of Representatives did the same by a vote of 387–35. Ford was sworn in later that day before a joint session of the United States Congress.
1974: Appointment of Nelson Rockefeller as Vice PresidentEdit
When Gerald Ford became President, the office of Vice President became vacant. On August 20, 1974, after considering Melvin Laird and George H. W. Bush, President Ford nominated former New York Governor Nelson Rockefeller to be the new vice president.
On December 10, 1974, Rockefeller was confirmed 90–7 by the Senate. On December 19, 1974, Rockefeller was confirmed 287–128 by the House and sworn into office later that day in the Senate chamber.
1985: George H. W. BushEdit
On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a villous adenoma (a pre-cancerous lesion) was discovered. When told by his physician (Dr. Edward Cattau) that he could undergo surgery immediately or in two to three weeks, Reagan elected to have it removed immediately.
That afternoon, Reagan consulted with White House counsel Fred Fielding by telephone, debating whether to invoke the amendment and, if so, whether such a transfer would set an undesirable precedent. Fielding and White House Chief of Staff Donald Regan recommended that Reagan transfer power and two letters doing so were drafted: the first letter specifically invoked Section 3 of the Twenty-fifth Amendment; the second only mentioned that Reagan was mindful of this provision. At 10:32 a.m. on July 13, Reagan signed the second letter and ordered its delivery to the appropriate officers as required under the amendment. Vice President George H. W. Bush was Acting President from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a second letter to resume the powers and duties of the office.
Books such as The President Has Been Shot: Confusion, Disability and the 25th Amendment, by Herbert Abrams, and Reagan's autobiography, An American Life, argue President Reagan's intent to transfer power to Vice President Bush was clear. Fielding himself adds:
I personally know he did intend to invoke the amendment, and he conveyed that to all of his staff and it was conveyed to the VP as well as the President of the Senate. He was also very firm in his wish not to create a precedent binding his successor.
2002: Dick CheneyEdit
On June 29, 2002, President George W. Bush underwent a colonoscopy and chose to invoke Section 3 of the amendment, temporarily transferring his powers to Vice President Dick Cheney. The medical procedure began at 7:09 a.m. EDT and ended at 7:29 a.m. EDT. Bush woke up twenty minutes later, but did not resume his presidential powers and duties until 9:24 a.m. EDT after the president's physician, Richard Tubb, conducted an overall examination. Tubb said he recommended the additional time to make sure the sedative had no aftereffects. Unlike Reagan's 1985 letter, Bush's 2002 letter specifically cited Section 3 as the authority for the transfer of power.
2007: Dick CheneyEdit
On July 21, 2007, President Bush again invoked Section 3 in response to having to undergo a colonoscopy, temporarily transferring his powers to Vice President Cheney. President Bush invoked Section 3 at 7:16 a.m. EDT. He reclaimed his powers at 9:21 a.m. EDT. As happened in 2002, Bush specifically cited Section 3 when he transferred the Presidential powers to the Vice President and when he reclaimed those powers.
Considered Section 4 invocationsEdit
While Section 4 is the only part of the amendment that has never been invoked, there have been two instances in which invoking Section 4 of the Twenty-fifth Amendment was considered. Both involved the 40th President of the United States, Ronald Reagan.
1981: Reagan assassination attemptEdit
Following the attempted assassination of Ronald Reagan on March 30, 1981, Vice President George H. W. Bush did not assume the presidential powers and duties as Acting President. Reagan was unable to invoke Section 3, because he was in surgery. Bush did not invoke Section 4, because he was on a plane returning from Texas. Reagan was out of surgery by the time Bush arrived in Washington. In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked.
1987: Reagan's alleged incapacityEdit
Upon becoming the White House Chief of Staff in 1987, Howard Baker was advised by his predecessor's staff to be prepared for a possible invocation of the Twenty-fifth Amendment due to Reagan's perceived laziness and ineptitude.
What Baker's transition team was told by Donald Regan's staff that weekend shocked them. Reagan was "inattentive, inept", and "lazy", and Baker should be prepared to invoke the 25th Amendment to relieve him of his duties.
Reagan biographer Edmund Morris stated in an interview aired on the program,
The incoming Baker people all decided to have a meeting with him on Monday, their first official meeting with the President, and to cluster around the table in the Cabinet room and watch him very, very closely to see how he behaved, to see if he was indeed losing his mental grip.
Morris went on to explain,
Reagan who was, of course, completely unaware that they were launching a death watch on him, came in stimulated by the press of all these new people and performed splendidly. At the end of the meeting, they figuratively threw up their hands realizing he was in perfect command of himself.
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